Skip to content


Pt. Kashi Nath Rao Joshi Vs. Mt. Murta and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1938All198
AppellantPt. Kashi Nath Rao Joshi
RespondentMt. Murta and anr.
Excerpt:
- .....holding in respect of which the decree for arrears of rent has been obtained by the appellant decree-holder is such a property. it is not liable for attachment and sale in execution of the decree. the tenancy does not therefore vest in the official receiver and consequently there is no bar to the taking out of any execution proceedings by the decree-holder against the tenancy. one of the remedies available to a decree-holder for execution of his decree for arrears of rent is to eject the judgment, debtor from the tenancy. as the tenancy holding is not a property with which the insolvency court or the official receiver can deal, there can be no bar to the taking out of the ejectment proceedings in execution of his decree by the decree-holder (appellant) against the insolvent. it is.....
Judgment:

Ganga Nath, J.

1. This is a decree-holder s appeal and arises out of an order passed by the learned District Judge, asking the Revenue Court to drop the execution proceeding which were going an against the insolvent opposite party. The appellant has a decree against the insolvent for, arrears of rent. It has been stated by the learned Counsel for the appellant that ha (appellant) wants to eject the insolvent in execution of the decree. No provision in the Provincial Insolvency Act has been pointed out by the learned Counsel for the respondent which may support the order passed by the learned District Judge, Under Section 28(2), Provincial Insolvency Act:

No creditor to whom the insolvent Is indebted in respect of any debt provable under this Act shall daring the pendency of the insolvency proceedings have any remedy against the property of the insolvent in respect of the debt, or commence any suit or other legal proceedings, except with the leave of the Court and on such terms as the Court may impose.

2. It also provides for the vesting of the property of the insolvent in the receiver on the making of an order of adjudication. Clause (5) of the same section lays down:

The property of the insolvent for the purpose of this section shall not include any property (not being books of account) which is exempted by the Code of Civil Procedure, 1908, or by any other enactment for the time being in force from liability to attachment and sale in execution of a decree.

3. Under this Clause the property which is not liable for attachment and sale in execution of a decree does not vest in the Official Receiver. The tenancy holding in respect of which the decree for arrears of rent has been obtained by the appellant decree-holder is such a property. It is not liable for attachment and sale in execution of the decree. The tenancy does not therefore vest in the Official Receiver and consequently there is no bar to the taking out of any execution proceedings by the decree-holder against the tenancy. One of the remedies available to a decree-holder for execution of his decree for arrears of rent is to eject the judgment, debtor from the tenancy. As the tenancy holding is not a property with which the Insolvency Court or the Official Receiver can deal, there can be no bar to the taking out of the ejectment proceedings in execution of his decree by the decree-holder (appellant) against the insolvent. It is therefore ordered that the appeal be allowed with coats and the order of the learned District Judge be set aside.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //